PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           19 September 2000                   
	DOCKET NUMBER:   AR1999030169

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Joyce A. Hughes		Analyst	

  The following members, a quorum, were present:

	Mr. Hubert O. Fry, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests in effect, that she be entitled to Survivor Benefit Plan (SBP) annuity.

3.  The applicant states that the FSM agreed to provide her with SBP annuity which was ordered in the final judgement of divorce.  She also states that she requested election for SBP within one year of the final judgement of divorce.
The applicant submits various documents in support of her application.

4.  The FSM’s military record shows that on 1 January 1988, he retired from active duty.  He had completed 20 years and 25 days of active service and retired in pay grade E-6.  At the time of his retirement he elected SBP participation for “spouse only” full based amount.  On 21 January 1998, after 
24 years of marriage it ended in divorce.  The Property Settlement Agreement incorporated into the divorce decree provides that the “husband agrees to provide for survivor benefits commensurate with the amount the wife is entitled under the Qualified Domestic Relations Order (QDRO)”.

5.  On 16 March 1998, the applicant through her attorney made a written request to Defense Finance and Accounting Service Cleveland (DFAS-CL) to switch the SBP coverage from “spouse” to “former spouse”.  The applicant’s attorney’s correspondence to DFAS-CL did not specifically ask for a deemed election or a change in beneficiary from spouse to former spouse.  In addition to the correspondence her attorney provided a copy of the divorce decree and a copy of the property settlement agreement. 

6.  The FSM died on 23 February 1999.  His record shows that he continued to pay “spouse only” SBP costs until his death.  There is no evidence that the FSM remarried before his death.

7.  The applicant’s attorney provides copies of inquiries dated 22 January and 
3 March 1999, made to DFAS-CL concerning the applicant’s 16 March 1998, request.  He also provides a copy of DFAS-CL’s letter, dated 7 July 1999, to the Congressman of New Jersey denying the applicant SBP benefits.  

8.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage in those cases where the retiree had elected spouse coverage at retirement.  The request had to be made within 1 year from the date of the divorce.

9.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  However, surviving children are only entitled to SBP payments until reaching age 22 in certain cases. Changes in SBP options are not authorized except in specific instances, or authorized by law.

CONCLUSIONS:

1.  The evidence of record shows that at the time of retirement, the FSM elected 
SBP participation for his spouse.  They divorced in January 1998.  The Property 
Settlement Agreement incorporated into the divorce decree “provides that the “husband agrees to provide for survivor benefits commensurate with the amount of the wife is entitled under the QDRO”.

2.  The evidence of record also shows that on 16 March 1998, the applicant through her attorney made a written request to DFAS-CL to switch the SBP coverage from spouse to former spouse.  Her attorney’s correspondence did not specifically ask for deemed election or a change in beneficiary from spouse to former spouse.  However, DFAS-CL had sufficient information in the documents provided to logically conclude the intent of the request.  It is the Board’s opinion that DFAS-CL erred by not considering the applicant’s attorney’s request as a request for a deemed election and processed the case accordingly.  It is also the opinion of the Board, that the applicant should not be penalized because of the confusion on the part of her attorney and DFAS-CL.

3.  The Board should however, consider as evidence that the FSM paid for SBP benefits until his death.  The record also shows that the FSM and the applicant were married for 24 years, the extent of the FSM’s entire military career and the Board believes it was the intention of the FSM to provide for the spouse.  There is no evidence that the FSM remarried before his death and that SBP was intended to benefit military spouses and former spouses.  Therefore, in the interest of justice it would be appropriate to correct the records as recommended below.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that on 16 March 1998, the applicant requested a deemed election and, as a result, on 1 April 1998, DFAS-CL changed the FSM SBP election from spouse to former spouse.

BOARD VOTE:  

__hof___  __jpi___  __rks___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Hubert O. Fry, Jr.
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999030169	
SUFFIX		
RECON		
DATE BOARDED	20000919	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.0000	
2.		
3.		
4.		
5.		
6.